MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND REJECTING IN PART REPORT AND RECOMMENDATION
Plaintiff Gail Mandy was employed by defendant Minnesota Mining and Manufacturing (“3M”) as a laborer from approximately September 12, 1991 to November 1993. Mandy filed a complaint against 3M on August 3, 1995, alleging sex discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e,
et seq.
(“Title VII”) and the Minnesota Human Rights Act, Mnn.Stat. §§ 363.03,
et seq.
(“MHRA”) and claims of negligent training, retention, and supervision. Defendant moved to dismiss or, in the alternative, for
Magistrate Judge Mason filed his Report and Recommendation on April 23, 1996, and recommended that the Court: (1) grant defendant’s motion for summary judgment and dismiss plaintiffs sex discrimination and negligence claims; and (2) strike paragraph 15 from plaintiffs complaint pursuant to Rules 8 and 12(f) of the Federal Rules of Civil Procedure. The matter is before the Court on plaintiffs objections to the Magistrate Judge’s recommendation that the Court dismiss her sex discrimination and negligence claims. 1 The Court has reviewed de novo plaintiffs objections to the Report and Recommendation on this dispositive pretrial matter, pursuant to 28 U.S.C. § 636(b)(1)(C) and D.Minn. LR 72.1(c)(1). The Court agrees with the Magistrate Judge’s conclusion that plaintiffs Title VII sex discrimination claim and her negligent training claim should be dismissed, but rejects the Magistrate Judge’s recommendation as to plaintiffs sex diserimination claim under the MHRA and her negligent retention and supervision claims.
1. Sex Discrimination Claims
Defendant argues that plaintiffs claims are barred because she did not file a charge of discrimination within 300 days of the alleged discrimination as Title VII requires, or within 365 days as the MHRA requires. See 42 U.S.C. § 2000e-5(e)(l); Minn.Stat. § 363.06, subd. 3. Given that plaintiff filed a charge of discrimination on March 21, 1994, plaintiffs discrimination claims are timely only if the alleged sexual harassment occurred on or after March 21, 1993 for purposes of her MHRA claim, and on or after May 25, 1993 for her Title VII claim.
In support of her argument that her claims are timely, plaintiff relies on her complaint, a signed statement she gave 3M investigators on April 8, 1993, and an affidavit filed with her opposition to defendant’s motion.
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Plaintiffs complaint states that she was sexually harassed by her supervisor, William Palmer, beginning on April 22, 1992, and continuing through March 22, 1993. Plaintiffs statement to 3M’s investigators and her affidavit contain many specific allegations supporting her claim that Palmer subjected her to repeated and ongoing unwelcome conduct of a sexual nature throughout the time period alleged in her complaint. The allegations include repeated sexual comments about
Plaintiffs statement to 3M describing specific incidents of unwelcome conduct includes an incident which occurred on Friday, March 19, 1993 at 10:00 a.m., in which Palmer grabbed her sweatshirt, looked down her shirt, commented on her breasts and put his hand on her neck. Plaintiff states that on the next work day, Monday, March 22, 1993, she reported Palmer’s behavior. Palmer then came to her work area, grabbed her arm, and, as plaintiff described the incident:
[Palmer] said, “What are you trying to do to me, get me fired? I didn’t say anything. He said, “I want you to go tell them guys that what I did was nothing” again. I said nothing. We went to the office, and the 5 of us were talking about what had happened] and Bill [Palmer] said it was nothing, grabbing at my shirt trying to show what he did. I said, “that’s not the way it was.” He said that he didn’t want anything that was said to leave the office. He really didn’t want Butch to know. Bill said he was really seared, (punctuation added).
Plaintiff argues that this March 22 incident, which occurred within the statute of limitations period, was part of a series of related acts of discrimination based on plaintiffs sex and that her claims therefore are timely pursuant to the continuing violation doctrine.
The Magistrate Judge concluded that the March 22 incident was not an incident of discrimination based on sex and therefore did not consider whether it was part of a continuing violation. The Magistrate Judge noted only the part of the incident in which Palmer grabbed plaintiffs arm; he apparently did not consider Palmer’s later action of grabbing at plaintiffs shirt to demonstrate what he claimed he had done the previous Friday. The Magistrate Judge concluded that the arm-grabbing incident happened to plaintiff, not because she was female, but because she complained about sexual harassment. He therefore characterized the incident as one of retaliation, and not harassment, as a matter of law. Because the incident was not harassment, the Magistrate Judge specifically declined to consider whether it was part of a continuing violation which included the prior conduct of incidents of discrimination based on sex.
The Court disagrees with the Magistrate Judge’s analysis for the following reasons. First, in determining whether the incident within the statute of limitations period constituted sexual harassment, the Court must consider “ ‘the record as a whole’ and ‘the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred.’ ”
Mentor Sav. Bank, FSB v. Vinson,
We have never held that sexual harassment or other unequal treatment of an employee or group of employees that occurs because of the sex of an employee must, to be illegal under Title VII, take the form of sexual advances or of other incidents with clearly sexual overtones. And we decline to do so now. Bather, we hold that any harassment or unequal treatment of an employee or group of employees that would not occur but for the sex of the employee or employees may, if sufficiently patterned or pervasive, comprise an illegal condition of employment under Title VII.
Hall v. Gus Constr. Co., Inc.,
Against the backdrop of the definition of sexual harassment, the Court must also apply the continuing violation doctrine. Under that doctrine, there may be redress for unlawful discriminatory acts which occurred prior to the statute of limitations period if they are related to violative acts which occurred within the statutory period. A plaintiff may challenge incidents which occurred outside the statute of limitations period if the various acts of discrimination constitute a continuing pattern of discrimination.
Hukkanen v. Int'l Union of Operating Eng'rs, Hoisting & Portable,
Federal courts have recognized two types of continuing violations, a series of related acts, one or more of which falls within the limitations period, or the maintenance of a discriminatory system both before and during the limitations period.
Jenson v. Eveleth Taconite Co.,
Defendant argues that a bright-line distinction can be drawn in this case between sexually harassing behavior and retaliatory behavior, that Palmer’s actions on March 22 were motivated only by retaliation, and that these actions therefore are unrelated to Palmer’s previous actions. Defendant’s interpretation of the March 22 incident must be rejected because it would require drawing an inference adverse to plaintiff when all inferences must be drawn in plaintiffs favor for purposes of this motion.
Moreover, even if the Court accepted defendant’s characterization of the events on March 22 as motivated solely by reprisal, that would not bar the Court from also considering them to be acts of sexual harassment under Minnesota law. The Minnesota Court of Appeals specifically rejected the argument that acts of reprisal cannot constitute sexual harassment in
Giuliani v. Stuart Corp.,
A “consequence,” according to the [Minnesota Supreme Court], is merely a “continuing effect.” [The] reprisals were not only continuing effects but were discriminatory acts in and of themselves. [Plaintiffs] claim of sexual harassment is thus not barred by the statute of limitations.
Id. at 596. This analysis seems particularly appropriate where the act which defendant urges the court to consider only as an act of reprisal involves physical touching of the plaintiff, and where it “flows directly” from an incident of alleged unwelcome touching which occurred on the previous workday and which could not have been motivated by retaliation.
The Court views the acts which occurred within the statute of limitations period on March 22, 1993, as closely related to those winch occurred on March 19, 1993 and as part of a series of related acts of alleged harassment which would not have occurred but for plaintiffs sex. The Court’s view is guided by reference to federal cases applying the continuing violation doctrine to hostile environment sexual harassment claims. Other federal courts have shared this Court’s view that to properly evaluate whether the acts within the limitations period are part of a series of related acts, it must consider all of the alleged related acts. As the court stated in Jenson:
In the arena of sexual harassment, particularly that which is based on the existence of a hostile environment, it is reasonable to expect that violations are continuing in nature: a hostile environment results from acts of sexual harassment which are pervasive and continue over time, whereas isolated or single incidents of harassment are insufficient to constitute a hostile environment. Accordingly, claims based on hostile environment sexual harassment often straddle both sides of an artificial statutory cut-off date.
Moreover, evidence of what occurred prior to the beginning of the statutory period is relevant evidence which may be considered in determining whether a hostile environment existed during the relevant period. This view is implied in Meritor: the Supreme Court considered acts of harassment that had occurred over a four year period. At no time did the Court mention that some of those events occurred outside the relevant time period.
Jenson,
Were the Court to employ the more mechanical analytical framework for applying the continuing violation theory enunciated in
Berry v. Bd. of Supervisors of L.S.U.,
The second factor, the frequency of the acts, also points toward a continuing violation in this case. Plaintiff alleged an unbroken string of incidents of sexually moti
The third Berry factor, permanence, involves inquiry into whether an act outside the limitations period should have triggered the plaintiffs awareness and duty to assert her rights. This factor is difficult to apply in the context of allegations of recurrent incidents of harassment. See Ramona L. Paetzold & Anne M. O’Leary-Kelly, Continuing Violations and Hostile Environment Sexual Harassment: When is Enough, Enough ?, 31 Am. Bus. L.J. 365, 390-92 (November 1993) (noting difficulty of applying third factor of Berry test to hostile environment claims). The Court is unable to distinguish any particular alleged incident prior to the limitations period which, as a matter of law, should have spurred plaintiff to assert her rights.
For the reasons stated above, defendant has failed to demonstrate that it is entitled to judgment as a matter of law on the statute of limitations with respect to plaintiffs sex discrimination claims under the MHRA. The Court rejects the Magistrate Judge’s recommendation and denies defendant’s motion to dismiss or for summary judgment as to plaintiffs MHRA sex discrimination claim. The Court agrees with the Magistrate Judge that plaintiff failed to demonstrate any alleged acts of sexual harassment which occurred on or after May 25, 1993; therefore, the Court accepts the Magistrate Judge’s recommendation that defendant's motion for summary judgment on plaintiffs Title VII sex discrimination claim be granted.
II. Negligence Claims
The Magistrate Judge recommended dismissing plaintiffs state law claims of negligent supervision and negligent retention because he concluded they were preempted by the MHRA and Minnesota’s Workers Compensation Act (WCA). The tort of negligent retention has been recognized in Minnesota law for over 100 years.
Dean v. St. Paul Union Depot Co., 41
Minn. 360,
predicated on the negligence of an employer in placing a person with known propensities, or propensities which should have been discovered by reasonable investigation, in an employment position in which, because of the circumstances of the employment, it should have been foreseeable that the hired individual posed a threat of injury to others.
Ponticas v. K.M.S. Investments,
Negligent retention ... occurs when, during the course of employment, the employer becomes aware or should have become aware of problems with an employee that indicated his unfitness, and the employer fails to take further action such as investigating, discharge, or reassignment.
Yunker v. Honeywell, Inc.,
The Minnesota Supreme Court has also recognized the tort of negligent supervision. Minnesota courts look to
Restatement (Second) of Torts
§ 317 and
Restatement (Second) Agency
§ 213 in defining the parameters of the tort. In
Semrad v. Edina Realty, Inc.,
[T]he entire thrust of § 317 is directed at an employer’s duty to control his or her employee’s physical conduct while on the employer’s premises or while using the employer’s chattels, even when the employee is acting outside the scope of the employment, in order to prevent intentional or negligent infliction of personal injury.
Id.
The duty imposed is unambiguously limited to preventing an employee from inflicting personal injury upon a third person on the master’s premises or inflicting bodily harm by use of the employer’s chattels.
Id.
at 534. The tort has also been described as “the failure of the employer to exercise ordinary care in supervising the employment relationship so as to prevent the foreseeable misconduct of an employee causing harm to others.”
Fletcher v. St. Paul Pioneer Press,
The Court first considers whether plaintiff has stated a claim of negligent retention or supervision under Minnesota law. Plaintiff has alleged that she complained to Palmer’s supervisor in August 1992 about Palmer’s harassment, that nothing was done in response to her complaints, and that the harassment became worse after her complaints and continued through March 1993. Plaintiff also alleges that Palmer touched her in a sexual manner on more than one occasion after she complained about his behavior. Plaintiff has therefore alleged that in the course of her employment, her employer became aware of Palmer’s alleged unfitness and failed to take further action. Plaintiff has adequately pleaded a claim of negligent retention.
See Yunker,
Defendant argues that the torts of negligent retention and supervision apply only to violent acts causing physical injury. Some courts have suggested that redress for the tort of negligent retention under Minnesota law is confined to cases involving physical injury.
Leidig v. Honeywell, Inc.,
Even if the tort of negligent retention is limited to cases involving physical injury, however, plaintiff has alleged physical injury
With respect to negligent supervision, it is even less clear that Minnesota law requires an allegation of violent aggression.
See Semrad,
Having determined that plaintiff has stated a claim of negligent retention or supervision, the Court addresses defendant’s argument that plaintiffs negligence claims are preempted by the MHRA and the WCA. The Magistrate Judge concluded that the claims were preempted based solely on the holdings in an unpublished Minnesota Court of Appeals ease,
Wise v. Digital Equipment Corp.,
The Minnesota Supreme Court has never addressed the issue of preemption of negligent retention or supervision claims by the MHRA or the WCA. The
Wise case is
unpublished and contains little analysis of these important state law issues. The parties’ memoranda with respect to this motion was largely focussed on other issues. Although
Wise
appears to hold that negligent supervision or retention claims for failure to respond
to
sexual harassment are preempted by the MHRA, another unpublished Minnesota Court of Appeals case has held that claims may be brought for negligent supervision or retention of a sexual harasser.
See DeRochemont v. D & M Printing of Minneapolis,
There is a similar lack of clarity in Minnesota law with respect to preemption by the Workers Compensation Act. Although
Wise
appears to hold that any negligent retention
These cases, as well as a review of cases from other jurisdictions,
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compel the conclusion that the Court cannot decide the WCA preemption issue presented in this case without further development of the factual record and additional briefing. Under Minnesota law, to be compensable under the WCA, the plaintiffs injury must arise out of the employment, must be in the course of the employment and must not come within the “assault exception” to the definition of personal injury in the WCA
Foley v. Honeywell, Inc.,
In conclusion, the Court finds defendant has failed to demonstrate that it is entitled to judgment as a matter of law at this stage of these proceedings. The Court rejects the Magistrate Judge’s recommendation that it grant summary judgment for defendant on plaintiffs negligent retention or supervision claims at this time, but the Court may entertain a motion for partial summary judgement on the preemption issues when the record is more fully developed.
With respect to plaintiffs negligent training claim, the Court agrees with the Magistrate Judge’s conclusion that Minnesota does not recognize such a cause of action.
See M.L. v. Magnuson,
ORDER
Based on the submissions of the parties, the arguments of counsel and the entire file and proceedings herein, IT IS HEREBY ORDERED that the Magistrate Judge’s Report and Recommendation [Docket No. 14] is
Notes
. Plaintiff did not object to the Magistrate Judge's recommendation that paragraph 15 of her complaint be stricken pursuant to Federal Rules of Civil Procedure 8 and 12(f), and there is little consequence to the Magistrate Judge's recommended ruling absent a Rule 12(e) motion for a more definite statement from defendant. Although defendant’s motion to strike paragraph 15 of plaintiff's complaint was premised solely on its argument that the claim was time-barred, the Magistrate Judge recommended that even if the claim was timely filed, the Court should strike the paragraph as “impertinent and scandalous” material unnecessary to the complaint, apparently because the factual allegations describe the sexual comments and advances plaintiff allegedly experienced.
The Court will adopt the Magistrate Judge's recommendation on this issue because it was not objected to, but notes that a plaintiff in a sexual harassment case has the burden of stating a claim showing entitlement to relief with sufficient specificity to survive a Rule 12(e) motion. A prima facie case of sexual harassment may include allegations that the plaintiff was subjected to unwelcome sexual conduct which interfered with a term or condition of her employment. The Court hesitates to restrict the manner in which a plaintiff may plead such a case in the absence of evidence of an improper purpose or lack of evidentiary support, which are adequately addressed by the obligations imposed by Fed. R.Civ.P. 11.
. Defendant’s motion is to dismiss or, in the alternative, for summary judgment. Given the Magistrate Judge’s recommendation that the Court grant summary judgment on plaintiff’s sex discrimination claims, the Court must take all evidence produced by the parties into consideration in its review.
. Defendant argues that
Hall,
a case applying Title VII to a sexual harassment claim, does not apply to a sexual harassment claim under the MHRA due to differences in the language of the two statutes. The Minnesota Supreme Court, however, has repeatedly held that principles de
. The Minnesota Court of Appeals case of
Vaughn v. Northwest Airlines, Inc.,
. Although some courts have held that their state worker’s compensation statutes preempt negligent retention or supervision claims regarding alleged sexual harassment, courts in other jurisdictions have rejected the same preemption arguments.
Compare Fields v. Cummins Employees Fed. Credit Union,